On The Implementation And Perfection Of The Case Guidance System In Chinese Courts

Similar cases similar to the treatment,is the basic requirements of modern rule of law.In the judicial practice,the phenomenon of "the same case is different" is frequent,which leads to the suspicion of the public's ability to maintain legal uniformity.This is not only consistent with the requirements of modern rule of law,but also to shake the public's belief in the law and weaken the judicial authority.In this context,the Supreme People's Court from the twentieth century,the eighties began to use the case to guide the trial practice to explore;in 2004,"People's Court of the Second Five-Year Reform Program" put forward to establish and improve the case guidance system.In 2010,the introduction of the "Supreme People's Court on the case guidance work," marks the formal establishment of the case guidance system.The implementation of the case guidance system is based on the guiding case,and the courts at all levels have reached the purpose of maintaining judicial reunification and improving the judicial quality by referring to the applicable case in similar cases.I as a grass-roots judicial staff,have the most intuitive feel of the implementation of the case guidance system.Therefore,this article from the perspective of judicial practice,analysis of the guiding case in a specific case of practical operation methods,to explore the implementation of case guidance system.At the same time,it analyzes the reasons for the low application rate of the guiding case in practice and the obstruction of the case guidance system,and puts forward some concrete suggestions.In addition to the introduction and conclusion,the full text is divided into four parts.The first part analyzes the theoretical basis of case guidance system.This part first defines the definition of guiding case and case guidance system through comparative analysis,and expounds the basic content of case guidance system from the aspects of distribution subject,recommendation mode,case source,case type,reference effect and standard.Secondly,the necessity and feasibility of the case guidance system are analyzed and demonstrated.To ensure the judicial equality,the maintenance of judicial authority;the integration of judicial resources,to achieve judicial efficiency;to overcome the limitations of statutory law,return to the law of intent;to stabilize social order,improve the legal system of the four aspects of the need for institutional construction,deepening people on the case Guidance system.And from the case guidance system to adapt to the integration of the two major legal trends,China has case guidance of cultural soil and rich practical experience,the court system bureaucratic structure conducive to the implementation of the system and other aspects of the feasibility of the construction of the system.Again,define the nature of the case guidance system and summarize its function.Through the analysis of different theories,the case guidance system is finally defined as a legal application mechanism.And to ensure the quality of the trial,to improve the efficiency of the trial;to promote legal education,enhance the sense of judicial identity;should be social needs,to promote the legal system,to promote the legal system,The Function of Harmonious Society Construction.The last part of the section is a study of extraterritorial related systems.By studying the common law system represented by the United Kingdom and the civil law system,which is represented by Germany,this paper summarizes the advanced experiences of different countries in the legal system to perfect the case guidance system in China.The second part is the analysis of the specific application process of the case guidance system.First,to guide the case of 50 as an example,the analysis pointed out that the application of the guiding case,including the case of comparison and reasoning argument in two parts.Which is the case of the application of the premise and basis,the substantive fact is the core of the case comparison;reasoning argument is through the referee points as a major premise,the results of the case as a small premise,through the syllogism method to obtain the referee structure The Followed by the publication and application of the statistical guidance case,the statistical conclusion pointed out that the case guidance system operation is blocked,the performance of the guidance case is low and the application is not standardized.The third part is the analysis of the reasons for the poor implementation of the case guidance system mainly from the system and practice two levels.At the institutional level,the current type and quantity of guidance cases and the level of search can not meet the needs of the actual judicial;and the lack of supervision and restraint mechanisms for the application of the guiding cases.At the practical level,the judge of the law of the referee thinking solidification,lack of guidance case applicable technology;lawyers also neglect the use of guidance cases;the public lack of consensus on the system construction.The fourth part is about the effectiveness of the case guidance system to enhance the effectiveness of countermeasures.On the basis of reality,through the optimization of the guiding case selection mechanism,the establishment of guidance cases applicable to the supervision and restraint mechanisms,reform and strengthen the case of the application of education and training to improve the quality of judges,improve the level of guidance of the information retrieval,The guidance system of the case and the propaganda and other measures to expand the application of the guidance case,improve the case guidance system.Finally,the long-term conception of the case guidance system is put forward,that is,after the case guidance system has gained extensive social consensus,it is boldly proposed to extend the guidance case main body to the higher people's court and give the guidance case legal binding force.